Citation Nr: 9810158
Decision Date: 04/01/98 Archive Date: 04/23/98
DOCKET NO. 96-41 976 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
INTRODUCTION
The veteran had active service from March 1968 to December
1970.
Service connection was not in effect for any disorder at the
time of the veteran’s death. The veteran died a purported
suicide by handgun on March 11, 1995 after having killed his
alleged girlfriend of 17 years. He died at “home”.
The death certificate signed by the Deputy County Chief
Medical Examiner identifies the informant as “Roise
Shannon” and shows the veteran’s parents as Rosie Shannon
and Joe Johnson. The cause of death was exsanguination due
to a gunshot wound to the chest. He was also noted to have
an additional 4 gunshot wounds to the neck. An autopsy was
performed although a report is not of record.
The appellant is claiming that as the unremarried widow of
the veteran, she is entitled to benefits based on service
connection for the cause of his death.
Prior to rendering a final decision on that issue, and
without addressing or reflecting on any segment of that
pending question, the Board finds that additional development
is required on the issue as to whether the appellant has
proper standing to bring this action. The United States
Court of Veterans Appeals (the Court) has repeatedly
admonished that adjudication on the merits may not take place
absent a basic determination as to the standing of the
impacted parties.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West Supp. 1997) (Historical and Statutory Notes). In
addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
According to documentation of record, the veteran and the
appellant were married in January 1973. Various documents
are of record relating to filings for divorce by both the
appellant and the veteran in the 1990’s. There is a document
of record showing that the veteran’s claim in that regard was
denied by one Judge. It is unclear whether the appellant’s
one or more petitions was/were ever finalized, and if so,
under what circumstances, by whom, when, and under what
conditions.
The appellant provided a written statement to the effect that
while she also had filed for separate maintenance in 1975 or
1976, documentation of which is not of record, she has also
reiterated that she was never actually divorced from the
veteran.
On the other hand, the appellant testified in 1997 that she
married the veteran in 1973, that she was married to him for
“6 years”, and that she was “still married to him”.
The appellant further stated that although they had not lived
together in continuous cohabitation for some time prior to
his death, it was the abusive nature of the veteran and his
relationships with other women, among other problems, which
served as the bases for their separation, none of which could
be attributed to her fault. She also stated in
correspondence of record that he would leave her over and
over again for other women and then return.
When interviewed by the VA Field Investigator, the appellant
stated that things were fine between the veteran and herself
for two years prior to their marriage and two years after it;
but that it became impossible for her to live with him
thereafter because of his abusiveness.
Thus there is a question not just as to the relationship of
the appellant and the veteran for a brief period of time
prior to his death, but rather what their legal relationship
was for almost 20 years until his death in 1995.
That the relationship of the appellant and the veteran
involved abuse was in essence stipulated as a result of the
interviews. That documentation of reported police calls by
the appellant and alleged repeated assaultive and gun
incidents records were not obtained was apparently due to the
lack of written request.
In May 1995, a memorandum was prepared by the RO for the file
with regard to questions which needed to be resolved in a
pending Field Investigation. Although a report of a
subsequent Field Investigation is of record, not all of the
pertinent questions were apparently resolved. These will be
reiterated as required below.
Although a death certificate is of record, and the Field
Investigator read the police report, (i.e., it was from that
report that the fact was elicited that the veteran had killed
the girlfriend of 17 years), a written request was reportedly
necessary for the report to be turned over so that it could
be added to the file, and apparently that was never obtained.
The Field Investigator stated that nothing in the police
report mentioned the appellant by name. Nonetheless, the
veteran is identified as married at the time of his death;
and the appellant is shown, by name, on the death certificate
as the surviving spouse. As noted, this police report as to
the veteran’s death and any pertinent circumstances
surrounding same are not in the file.
Therefore, pursuant to VA’s duty to assist the appellant in
the development of facts pertinent to her claim under
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1997), the Board is deferring adjudication of the issue
prepared and certified for appellate review pending a remand
of the case to the RO for further development as follows:
1. The RO should undertake a Field
Investigation to determine definitive and
supportable answers to the following
questions:
(a) What was the legal status between
the veteran and the appellant at the
time of his death, and upon what is
that based? If they were not
divorced, were other legal papers or
status in effect and under whose
authority and under what
circumstances according to public
records? What was the legal and
practical relationship to include
cohabitation and related status of
the appellant and the veteran from
the time of their ceremonial marriage
in 1973 until his death in 1995?
Were both parties free to marry one
another in 1973? If not, the details
should be given as to any
impediments, etc.
Paperwork such as police reports and
interviews documenting the
relationship of the appellant and the
veteran as viewed by the community in
which they resided should be
acquired, to include police reports,
medical records, etc. If they had not
lived together prior to his death,
when did such separation take place,
and what were factors involved
therein? All public and otherwise
available records including hospital
treatment reports for injuries etc.,
should be acquired to provide as
complete a picture as possible.
(b) A determination should be made if
the appellant is acting on her own
behalf and/or on behalf of one or
more of the veteran’s children (which
he apparently had by her and one or
more other women), and what is the
relative interest of any of the
veteran’s offspring in this case? On
what basis or authority is she
acting? What is the status of other
persons with regard to the veteran,
including all of his children, if
determinable, and what is their
relationship if any with regard to
the current claim?
(c) What were the circumstances
surrounding the veteran’s death, his
relationship with the other person he
allegedly killed at that same time,
and upon what documentation is that
based? This should include police
reports before and after the death,
and all other relevant police data,
which should be requested in keeping
with mandated procedures for doing
same.
2. Thereafter, the RO should review the
claims file to ensure that all of the
requested development has been completed,
is responsive to and in complete
compliance with the directives of this
remand and if it is not, the RO should
implement corrective procedures.
3. After undertaking any development
deemed essential in addition to that
specified above, the RO should issue a
determination as to whether the appellant
can be recognized as the veteran’s
legitimate surviving spouse for the
purpose of adjudicating the prepared and
certified issue of entitlement to service
connection for the cause of the veteran’s
death.
If the RO’s determination in this regard
is favorable, the RO should provide the
appellant with notice of the
determination and return the case to the
Board for appellate review of the
prepared and certified issue of
entitlement to service connection for the
cause of the veteran’s death.
If the RO’s determination in this regard
is not favorable to the appellant, the RO
should notify the appellant of the
unfavorable determination and of her
right to appeal it.
If the appellant files a valid notice of disagreement with
the RO’s determination that she may not be recognized as his
legitimate surviving spouse for the purpose of a
determination of the prepared and certified issue of
entitlement to service connection for the cause of the
veteran’s death, the RO should issue a statement of the case.
A reasonable period of time for a response should be
afforded. Thereafter, the case should be returned to the
Board for appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the appellant
until she is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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